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 Mediation – An Alternative to Lawsuits

Mediation – An Alternative to Lawsuits

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By NEELA RAMSUNDAR

 

CONFLICT raises its head whenever and wherever our individual vested interests or desires collide with those of others (Baguley, Phil. “Negotiating” 2003 Ed. pp. 3-4). Our lives are full of it.

We can resolve conflict in several different ways. We can ignore it, give in to it, do whatever it takes to win, be diplomatic and work together to find a solution, or give and take until a workable compromise is achieved.

Doing whatever it takes to win can translate into combat by way of a lawsuit, something that can be time consuming, expensive and energy draining. But what if I told you there was another option, called Mediation (not meditation), that could prove very effective at resolving conflict? (Meditation may not be a bad idea either).

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What is mediation? Typically, the parties to a dispute sit together with an independent, neutral third party (the mediator) who facilitates confidential discussions geared towards arriving at an agreement in settlement of the dispute. The mediator would be a person trained in resolving disputes and registered with the Mediation Board of Trinidad and Tobago. The mediator is not a judge and must remain impartial at all times.

Various techniques will be employed by the mediator, but common ones are to set down ground rules on how the discussions are to proceed and to allow the parties to vent in turn, at which point they usually become more receptive to discussing various solutions (brainstorming).

If the mediation is successful, the parties will usually reduce their voluntary agreement in settlement of the dispute into writing and sign confirming same. If the parties are already embroiled in a lawsuit, the settlement agreement will usually be made into an Order of the Court by way of consent, bringing the matter to an end.

Almost any type of dispute that can end up before the courts can be mediated.

These include but are not limited to matrimonial disputes consequent upon a divorce, land disputes, contractual disputes, money collection claims, claims of negligence and family disputes.

The government currently has several mediation centres throughout Trinidad, where persons can visit and apply for the service. As far as I am aware, what is provided has not yet been expanded to become a free, all-encompassing dispute resolution service. It is more or less limited to facilitating resolution of disputes between family members and within communities.

Mediation in the private sector is generally not a free service but is usually considered inexpensive when compared to the significant costs of litigation.

There are hundreds of individually registered mediators within the country, and also private organisations that provide mediation services. See the Mediation Board of Trinidad and Tobago’s website http://www.mediationboard-tt.org/ for a bevy of information on mediation service providers and a wealth of related information.

Due to its success rate, I usually advocate inserting a mediation clause in contracts that would require parties to attempt to settle a dispute that arises from the contract through mediation first, before they can opt to sue. A sample clause may be as follows:

“If a dispute arises out of or relates to this contract, or the alleged breach thereof, and if the dispute is not settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation before resorting to arbitration, litigation, or some other dispute resolution procedure. The costs of the mediation will be shared by the parties. The parties shall have fourteen (14) days to agree on a mediator. In the event that the parties are unable to agree on a mediator, a mediator shall be selected by _______________________________. The mediation session shall be held within forty-five (45) days of the retention of the mediator and last for at least one full mediation session, before any party has the option to withdraw from the process. The parties may agree to continue the mediation process beyond one session, until there is a settlement agreement, or one party [or the mediator] states that there is no reason to continue because of an impasse that cannot be overcome and sends a written “notice of termination of mediation.” All reasonable efforts will be made to complete the mediation within thirty (30) days of the first mediation session. The process and all communications, both oral and written, shall be confidential based on terms acceptable to the mediator and/or the mediation service provider.”

Mediation puts the power of deciding the outcome of a dispute in the hands of the parties. The parties are effectively in control. In many ways, this can bring about a better, longer lasting solution that a Judge imposed one. So, remember: “Conflict is inevitable but combat is optional” – Max Lucado

© Neela Ramsundar, LL.B (HONS), L.E.C is a Civil Litigation Attorney at Law & Certified Mediator.

Disclaimer: The contents of this article are for general informative purposes only. It does not provide legal advice and does not create an attorney – client relationship. For legal advice, please contact an Attorney-at-Law of your choosing directly.

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